EB-3 Retrogression

By Keil Hackley

October 2005 – Imagine you are a foreign professional holding valid H-1B nonimmigrant alien visa status. Your current employer has agreed to sponsor you for a green card, and so you filed a Labor Certification Application with the Department of Labor that has come back approved.

You are now ready to file the I-140 Immigrant Alien Petition, which can be submitted either independently or concurrently with the I-485 Adjustment to Legal Permanent Residence Status. Each year, 140,000 employment-based immigrant visas are made available with 120,000 of these visas distributed evenly among the first three out of a total of five preference categories (EB-1 to EB-5). As a professional in a specialty occupation, you fall under the Employment-Based Third (EB-3) Preference Category, reserved for professionals, skilled, and unskilled workers, and for which 40,000 visas, plus unallocated visa numbers from the EB-1 and EB-2 categories, are reserved each year. Up until recently, the visa bulletin showed visa numbers for all immigrant visa categories to be current – that changed in July of this year.

A two-month moratorium, during which US CIS neither accepted I-485 applications nor adjudicated pending ones, led to an October visa bulletin announcing retrogression in the EB-3 category, which means pending I-485 applications cannot be adjudicated unless the applicant has a priority date of March 1, 2009 and new ones will not be accepted until the applicant’s priority date is up.

Your priority date as a professional worker falling under the EB-3 category is the date you started the green card process, which is the filing date of your Labor Certification with the Department of Labor. Citizenship and Immigration Service uses this date to determine who is next in line for an I-485 adjudication. Let’s assume that you filed your Labor Certification in July 2003. That would mean that until this date appears on the visa bulletin under the EB-3 category, all you can do is file the I-140. In order to remain in legal visa status, you might have to file for an H-1B extension since an approved I-140 does not keep you legally in the United States.

The priority date is different for citizens from China, India, Mexico, and the Philippines, countries with consistently high emigration rates. Each country is allotted seven percent of the available annual 140,000 immigrant visa numbers, and as such citizens of the above-cited countries experience more severe retrogression with a current priority date for citizens from India going as far back as January 1, 1998.

The retrogression problem applies solely to the filing of the I-485, and the current backlog in available immigrant visa numbers does not mean holding of on starting the green card process. Especially since priority dates are taking on crucial importance, it is advisable to start the Labor Certification Process as soon as possible. If you hold a master’s degree next to a bachelor’s degree, it is possible to apply for a green card under the Second Preference Category, reserved for advanced degree professionals, which is current as of October 2005 except for citizens from China and India.

M. Keil Hackley is a partner in the immigration law firm of Hackley & Robertson, P.A. and can be reached at (954) 349-4994 or kh@HackleyRobertson.com